NSW Nurses & Midwives' Association v SOS Nursing & Homecare Service Pty Ltd

[2013] FWC 5062

[2013] FWC 5062

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.229—Bargaining order

NSW Nurses & Midwives’ Association
v
SOS Nursing & Homecare Service Pty Ltd
(B2013/1042)

DEPUTY PRESIDENT BOOTH SYDNEY, 2 AUGUST 2013

Enterprise bargaining - application for a bargaining order - whether applicant is a bargaining representative.

[1] This matter concerns an application by the NSW Nurses and Midwives’ Association (the applicant or the Association) pursuant to s.229 of the Fair Work Act2009 (the Act) for a bargaining order in respect to the conduct of enterprise bargaining by SOS Nursing & Homecare Service Pty Ltd (the respondent) for two enterprise agreements proposed to cover their employees engaged in relation to work that is the subject of the Nurses Award 2010 and the Social, Community, Home Care and Disability Services Industry Award 2010 respectively.

[2] The applicant was represented by Mr Chris Blair of the applicant and, by permission, Mr Nick Dawson, solicitor. The respondent was represented by Mr Maurice Baroni, solicitor, an employer bargaining representative of the respondent. Mr Blair also appeared for the Queensland Nurses Union (QNU) although subsequently the applicant indicated that it did not press the application in relation to the QNU.

[3] Evidence was given for the applicant by Ms Therese Delaney, an employee of the respondent and for the respondent by Ms Rosemary Hyles, Managing Director and Ms Justine Cooper, Care Co-ordinator.

Contentions

[4] The applicant contended that the respondent was not meeting the good faith bargaining requirements set out in s.228 of the Act in that it was not, in the words of s.228(f) of the Act, recognising and bargaining with the other bargaining representatives for the agreement, namely, the applicant.

[5] The respondent on the other hand contended that the applicant was not a bargaining representative for the agreements and thus, could not make this application, nor bargain with them for the agreements.

[6] The applicant said in response that it was a bargaining representative in the continuing negotiation of an agreement that commenced in 2010 or, in the alternative, was a bargaining representative in the negotiation for the agreement/s that are subject to a Notice of Employee Representational Rights on 15 May 2013 and 4 June 2013.

Orders

[7] The applicant asked the Commission to order that:

“1. That the respondent recognise the NSW Nurses and Midwives’ Association as a bargaining representative;

2. That the respondent not commencing (sic) a ballot process 23 July-1 August for a new enterprise agreement and not commence a ballot process until such time as it participates in bargaining meetings with the Association and other bargaining representatives (if any) to negotiate a new agreement; and

3. That the respondent provide the Association and other bargaining representatives (if any) with each bargaining representative’s name, telephone contact number and email address for the purposes of allowing them to have discussions regarding bargaining for a new enterprise agreement.”

[8] Subsequently the applicant withdrew its application for all but the first order.

[9] It is necessary to consider the threshold question of whether the applicant is a bargaining representative to determine whether the application is validly made.

Background

[10] The respondent provides 24 hour, 7 day on call nursing and home care to clients in their own homes in New South Wales and Queensland, as well as short term respite day and overnight care from a facility in Tamworth, NSW.

[11] The SOS Nursing and Home Care Pty Ltd Employee Collective Agreement 2007 (the Agreement), a collective agreement based transitional instrument covers employees. This agreement will terminate from the first full pay period on or after 1 August 2013 by decision 1 of the Commission, arising from an application by some employees of the respondent.

[12] Negotiations for an enterprise agreement were undertaken between 2010 and 2012. On 10 October 2012 an application was made by the respondent for the approval of an agreement.

[13] On 14 December 2012, Deegan C 2 declined to approve the agreement because she decided that that it did not pass the Better Off Overall Test (BOOT) pursuant to s.186 of the Act and she was not otherwise satisfied that the agreement should be approved in accordance with s.189 of the Act.

[14] On 5 February 2013, the applicant wrote to the respondent with a request for a bargaining meeting to continue negotiations for an agreement.

[15] The respondent replied on 11 February 2013 declining the request and indicating that it was no longer engaged in enterprise bargaining, the bargaining having ceased when, pursuant to s.182 of the Act, the agreement was made by virtue of the majority of employees who cast a valid vote approving the agreement. The respondent indicated that it would consider negotiating a new enterprise agreement with its employees in the future.

[16] On 15 May 2013, the respondent issued employees with a Notice of Employee Representational Rights pursuant to s.174 of the Act giving notice that it is bargaining in relation to “an enterprise agreement (SOS Home and Community Care Enterprise Agreement 2013) which is proposed to cover all employees who perform nursing care, homecare or any other client care or ancillary services, including administrative and clerical services, for SOS.”

[17] On 3 June 2013, the respondent issued employees with two notices of employee representational rights pursuant to s.174 of the Act. One notice indicated that it is bargaining in relation to “an enterprise agreement (SOS Home Carers’ Agreement 2013) which is proposed to cover all employees who perform home care, personal care and any other client care (excluding Nursing Care) for SOS.” The other notice indicated that it is bargaining in relation to “an enterprise agreement (SOS Nursing Agreement 2013) which is proposed to cover all employees who perform nursing care for SOS.”

[18] On 18 June 2013, the applicant wrote to the respondent by email indicating that it will be representing members in bargaining for any new agreement.

[19] On 15 July 2013, the respondent replied by email indicating that they were in the process of drafting two enterprise agreements, one for clinical nursing staff and another for personal carers, domestic assistants and home and garden workers and asked the applicant to outline the basis and status of its involvement in the bargaining process for new enterprise agreements. In this email the respondent provided current drafts of the enterprise agreements and indicated that, subject to the resolution of the status of the applicant in bargaining, they would consider their comments and views. I note that the status of the applicant in bargaining was not resolved and is the subject of this proceeding. The respondent also indicated in that correspondence that it was their intention to put the two agreements to a vote of employees by post commencing on 23 July 2013. I note that this date subsequently changed to 27 July 2013.

[20] On the same day the applicant replied by email indicating that it was a bargaining representative and, amongst other things, seeking information about meetings, information about the concept of two agreements rather than one and details of other bargaining representatives. In this email the applicant asserted that it had members who are “registered nurses, enrolled nurses and also members who could be employed potentially under both draft agreements” and said that it was unwilling to disclose their names to the respondent but would do so to the Commission. The applicant also indicated its concern that the respondent was “seeking to have a ballot before any negotiations have taken place”.

[21] On 16 July 2013, the respondent replied to the effect that they believed that the applicant did not have members who would be covered by the proposed Nursing Agreement and had not received any notification appointing the applicant as a bargaining representative with respect to employees to be covered by the proposed Home Carers’ Agreement.

[22] On 17 July 2013, the application that is the subject of this matter was lodged and the matter came on for hearing on 22 July 2013 before me and continued on 30 July. The application was accompanied by an email sent to the respondent by the applicant on the same day and the contents of the email outline the matters that the applicant is concerned about.

Statutory framework

[23] The Act provides that a bargaining representative may apply for the making of a bargaining order in Division 8—FWC’s general role in facilitating bargaining, as follows:

Subdivision A—Bargaining orders

228 Bargaining representatives must meet the good faith bargaining requirements

(1) The following are the good faith bargaining requirements that a bargaining representative for a proposed enterprise agreement must meet:

(a) attending, and participating in, meetings at reasonable times;

(b) disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;

(c) responding to proposals made by other bargaining representatives for the agreement in a timely manner;

(d) giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative’s responses to those proposals;

(e) refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining;

(f) recognising and bargaining with the other bargaining representatives for the agreement.

(2) The good faith bargaining requirements do not require:

(a) a bargaining representative to make concessions during bargaining for the agreement; or

(b) a bargaining representative to reach agreement on the terms that are to be included in the agreement.

229 Applications for bargaining orders

Persons who may apply for a bargaining order

(1) A bargaining representative for a proposed enterprise agreement may apply to the FWC for an order (a bargaining order) under section 230 in relation to the agreement.

Multi-enterprise agreements

(2) An application for a bargaining order must not be made in relation to a proposed multi-enterprise agreement unless a low-paid authorisation is in operation in relation to the agreement.

Timing of applications

(3) The application may only be made at whichever of the following times applies:

(a) if one or more enterprise agreements apply to an employee, or employees, who will be covered by the proposed enterprise agreement:

(i) not more than 90 days before the nominal expiry date of the enterprise agreement, or the latest nominal expiry date of those enterprise agreements (as the case may be); or

(ii) after an employer that will be covered by the proposed enterprise agreement has requested under subsection 181(1) that employees approve the agreement, but before the agreement is so approved;

(b) otherwise—at any time.

Note: An employer cannot request employees to approve the agreement under subsection 181(1) until 21 days after the last notice of employee representational rights is given.

Prerequisites for making an application

(4) The bargaining representative may only apply for the bargaining order if the bargaining representative:

(a) has concerns that:

(i) one or more of the bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) has given a written notice setting out those concerns to the relevant bargaining representatives; and

(c) has given the relevant bargaining representatives a reasonable time within which to respond to those concerns; and

(d) considers that the relevant bargaining representatives have not responded appropriately to those concerns.

Non-compliance with notice requirements may be permitted

(5) The FWC may consider the application even if it does not comply with paragraph (4)(b) or (c) if the FWC is satisfied that it is appropriate in all the circumstances to do so.

230 When the FWC may make a bargaining order

Bargaining orders

(1) The FWC may make a bargaining order under this section in relation to a proposed enterprise agreement if:

(a) an application for the order has been made; and

(b) the requirements of this section are met in relation to the agreement; and

(c) the FWC is satisfied that it is reasonable in all the circumstances to make the order.

Agreement to bargain or certain instruments in operation

(2) The FWC must be satisfied in all cases that one of the following applies:

(a) the employer or employers have agreed to bargain, or have initiated bargaining, for the agreement;

(b) a majority support determination in relation to the agreement is in operation;

(c) a scope order in relation to the agreement is in operation;

(d) all of the employers are specified in a low-paid authorisation that is in operation in relation to the agreement.

Good faith bargaining requirements not met

(3) The FWC must in all cases be satisfied:

(a) that:

(i) one or more of the relevant bargaining representatives for the agreement have not met, or are not meeting, the good faith bargaining requirements; or

(ii) the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives for the agreement; and

(b) that the applicant has complied with the requirements of subsection 229(4) (which deals with notifying relevant bargaining representatives of concerns), unless subsection 229(5) permitted the applicant to make the application without complying with those requirements.

Bargaining order must be in accordance with section 231

(4) The bargaining order must be in accordance with section 231 (which deals with what a bargaining order must specify).

231 What a bargaining order must specify

(1) A bargaining order in relation to a proposed enterprise agreement must specify all or any of the following:

(a) the actions to be taken by, and requirements imposed upon, the bargaining representatives for the agreement, for the purpose of ensuring that they meet the good faith bargaining requirements;

(b) requirements imposed upon those bargaining representatives not to take action that would constitute capricious or unfair conduct that undermines freedom of association or collective bargaining;

(c) the actions to be taken by those bargaining representatives to deal with the effects of such capricious or unfair conduct;

(d) such matters, actions or requirements as the FWC considers appropriate, taking into account subparagraph 230(3)(a)(ii) (which deals with multiple bargaining representatives), for the purpose of promoting the efficient or fair conduct of bargaining for the agreement.

(2) The kinds of bargaining orders that the FWC may make in relation to a proposed enterprise agreement include the following:

(a) an order excluding a bargaining representative for the agreement from bargaining;

(b) an order requiring some or all of the bargaining representatives of the employees who will be covered by the agreement to meet and appoint one of the bargaining representatives to represent the bargaining representatives in bargaining;

(c) an order that an employer not terminate the employment of an employee, if the termination would constitute, or relate to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining);

(d) an order to reinstate an employee whose employment has been terminated if the termination constitutes, or relates to, a failure by a bargaining representative to meet the good faith bargaining requirement referred to in paragraph 228(1)(e) (which deals with capricious or unfair conduct that undermines freedom of association or collective bargaining).

(3) The regulations may:

(a) specify the factors the FWC may or must take into account in deciding whether or not to make a bargaining order for reinstatement of an employee; and

(b) provide for the FWC to take action and make orders in connection with, and to deal with matters relating to, a bargaining order of that kind.

232 Operation of a bargaining order

A bargaining order in relation to a proposed enterprise agreement:

(a) comes into operation on the day on which it is made; and

(b) ceases to be in operation at the earliest of the following:

(i) if the order is revoked—the time specified in the instrument of revocation;

(ii) when the agreement is approved by the FWC;

(iii) when a workplace determination that covers the employees that would have been covered by the agreement comes into operation;

(iv) when the bargaining representatives for the agreement agree that bargaining has ceased.

233 Contravening a bargaining order

A person to whom a bargaining order applies must not contravene a term of the order.

Note: This section is a civil remedy provision (see Part 4-1).

[24] Section 229(1) of the Act makes it clear that only a bargaining representative may make an application for a bargaining order. The Act addresses the definition of a bargaining representative in Division 3—Bargaining and representation during bargaining as follows:

176 Bargaining representatives for proposed enterprise agreements that are not greenfields agreements

Bargaining representatives

(1) The following paragraphs set out the persons who are bargaining representatives for a proposed enterprise agreement that is not a greenfields agreement:

(a) an employer that will be covered by the agreement is a bargaining representative for the agreement;

(b) an employee organisation is a bargaining representative of an employee who will be covered by the agreement if:

(i) the employee is a member of the organisation; and

(ii) in the case where the agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation—the organisation applied for the authorisation;

unless the employee has appointed another person under paragraph (c) as his or her bargaining representative for the agreement, or has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2); or

(c) a person is a bargaining representative of an employee who will be covered by the agreement if the employee appoints, in writing, the person as his or her bargaining representative for the agreement;

(d) a person is a bargaining representative of an employer that will be covered by the agreement if the employer appoints, in writing, the person as his or her bargaining representative for the agreement.

Bargaining representatives for a proposed multi-enterprise agreement if a low-paid authorisation is in operation

(2) If:

(a) the proposed enterprise agreement is a multi-enterprise agreement in relation to which a low-paid authorisation is in operation; and

(b) an employee organisation applied for the authorisation; and

(c) but for this subsection, the organisation would not be a bargaining representative of an employee who will be covered by the agreement;

the organisation is taken to be a bargaining representative of such an employee unless:

(d) the employee is a member of another employee organisation that also applied for the authorisation; or

(e) the employee has appointed another person under paragraph (1)(c) as his or her bargaining representative for the agreement; or

(f) the employee has revoked the status of the organisation as his or her bargaining representative for the agreement under subsection 178A(2).

(3) Despite subsections (1) and (2):

(a) an employee organisation; or

(b) an official of an employee organisation (whether acting in that capacity or otherwise);

cannot be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

Employee may appoint himself or herself

(4) To avoid doubt and despite subsection (3),, an employee who will be covered by the agreement may appoint, under paragraph (1)(c), himself or herself as his or her bargaining representative for the agreement.

Note: Section 228 sets out the good faith bargaining requirements. Applications may be made for bargaining orders that require bargaining representatives to meet the good faith bargaining requirements (see section 229).

[25] Section 176(1) of the Act makes it clear that an employee organisation is a bargaining representative of an employee who will be covered by the agreement, if the employee is a member of the organisation, and they have not appointed anyone else or revoked the status of the organisation as their bargaining representative.

[26] It is also clear from s.176(3) of the Act that an employee organisation will not be a bargaining representative of an employee unless the organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement.

[27] This has been interpreted to mean that an organisation may not be a bargaining representative for an employee for whom it does not have constitutional coverage. 3

[28] The requirement to be a bargaining representative to make an application is a feature of other sections of the Act. Section 437, Application for a protected action ballot order, provides that an application must be made by a bargaining representative.

[29] Commissioner Booth considered the status of the Construction, Forestry, Mining and Energy Union (CFMEU) in a decision of Fair Work Australia (FWA), as it then was, in relation to an application for a protected action ballot order. In Construction, Forestry, Mining and Energy Union v Rapid Metals Developments (Australia) Pty Ltd 4 she addressed the question of whether the CFMEU was entitled to represent the industrial interests of the respondent’s employees by reference to the eligibility rules of the CFMEU and stated at paragraph 20:

“[20] If RMD’s employees are accurately described, as a matter of fact, by one of these four alternatives, they are eligible for membership of the CFMEU.”

[30] Section 236 - Majority Support Determinations, provides that an application must be made by a bargaining representative.

[31] Commissioner Lewin considered the status of the Transport Workers’ Union of Australia (TWU) in a decision of FWA in relation to an application for a majority support determination. In Transport Workers’ Union of Australia 5 he addressed the question of whether the TWU was entitled to represent the industrial interests of the employees in respect of whom the determination was sought by reference to the rules of the TWU and stated at paragraph 13:

“[13] The TWU will be a bargaining representative if the following rules of the organisation apply to the employees in respect of whom the determination is sought.”

[32] Vice President Watson considered the status of the Australian and International Pilots Association (AIPA) in a decision of the Commission in relation to an application for a bargaining order. In Australian and International Pilots Association v Network Aviation Pty Ltd 6 he addressed the question of whether AIPA could validly enrol pilots employed by Network Aviation Pty Ltd under the terms of its eligibility rule. At paragraph 3 he said:

“[3] The central issue in this matter is whether AIPA can validly enrol pilots employed by Network under the terms of its eligibility rule. Network contends that this issue relates to the jurisdiction of the Commission to deal with its application because a valid application can only be made by a bargaining representative (s. 229(1)) and an employee organization cannot be a bargaining representative unless it is entitled to represent the industrial interests of an employee in relation to the work that will be performed under the proposed agreement (s. 176(3)). AIPA contends that the refusal of Network to recognise it as a bargaining agent is based on an erroneous interpretation of its eligibility rule and these very circumstances justify the granting of a bargaining order.”

[33] The starting point in the consideration of whether the applicant is a bargaining representative in this case is firstly, to establish whether they have a member employed by the respondent.

[34] The applicant provided me with a list of persons whom they contend are members at the respondent, however, they declined to make this list available to the respondent. One member, Ms Therese Delaney, gave evidence that she is a member. This was accepted by the respondent and I accept that the applicant has at least one member employed by the respondent.

[35] Secondly, I must consider whether the member, Ms Delaney, is entitled, by the eligibility rules of the applicant, to be a member.

[36] It should be noted that I agree with the views of Cambridge C in a decision of FWA, as it then was, DHL Supply Chain (Australia) Pty Ltd T/A DHL Supply Chain 7 to the effect that it would not be appropriate to consider my decision in this matter as narrowing or broadening the scope of the applicant’s eligibility rule. This consideration is not for any other purpose than the matter at hand.

[37] The applicant is a transitionally registered association under schedule 1 of the Fair Work (Registered Organisations) Act 2009. The membership eligibility rule is as follows:

“2. CONSTITUTION

The Association shall consist of:

(a) persons who are employed or who are usually employed in or in connection with the profession of nursing or midwifery as registered nurses, registered midwives, nurse educators, student nurses, enrolled nurses, trainee enrolled nurses, nursing assistants, assistants in nursing or assistants in midwifery;

(b) persons being qualified as or eligible to be registered as nurses or midwives, trainee enrolled nurses or enrolled nurses who are seeking to be employed in or in connection with the profession of nursing or midwifery.” 8

[38] Mr Dawson submitted that it was necessary to consider the two parts of the eligibility rule – “persons who are employed or who are usually employed” and “in or in connection with the profession of nursing or midwifery” 9 (often described as the industry or calling rule). That appears to me to be the correct approach.

[39] Commissioner Lewin considered the question of the industry rule in relation to the TWU in Transport Workers’ Union of Australia 10 and at paragraph 18 he said:

“[18] In my view, it will be necessary to find that the business of ISS is in connexion (sic) with the industry of aerial transportation and that employees of ISS are persons employed in or in connection with the transport of passengers by aircraft for the TWU to be entitled to represent the industrial interest of the employees at Adelaide Airport.”

[40] And at paragraphs 25 to 29:

“[25] The Tribunal’s approach to the construction of the TWU’s rules is subject to guidance expressed in decisions of the Full Bench of the Australian Industrial Relations Commission in CFMEU v Dyno Nobel (“Dyno Nobel”)  and Harnischfeger of Australia Pty Ltd v CFMEU (“Harnischfeger”). It is worthy of note that the decisions in both cases concerned the construction of union rules in relation to a very different statutory context, namely the determination of whether or not an industrial dispute existed between a union and an employer. Here I am concerned with the construction of a union’s industry and eligibility rule for the purposes of determining whether or not a valid application for a majority support determination has been made. Notwithstanding the different statutory contexts I consider the guidance equally apt.

[26] It seems to me that what is referred to in those decisions as the discrimen of the TWU’s eligibility rule is the industry of ISS or any connection of a “substantial character” between the industry of ISS and another industry. This is a question of fact. The relevant principles applicable to the construction of union industry and eligibility rules provide that the substantial character of an employer’s business may be in or in connection with more than one industry. The Full Bench in Dyno Nobel set out what was referred to as a “Summary of Principle” which is relevant, as follows:

‘Summary of Principle

Drawing the High Court authorities together, we think the position is as follows:

(a) An eligibility rule, or part of an eligibility rule, that simply refers to persons employed or engaged “in or in connection with” a specified industry or industries is properly characterised a conventional industry rule and the discremen of eligibility under such a rule is the industry of the employer, that is, whether the trade or business of the employer is in or in connection with the specified industry or industries.

(b) Whether or not the trade or business of an employer is in or in connection with a particular industry is a question of fact.

(c) The answer to that question of fact is determined by the “substantial character” of the trade or business of the employer and all of its employees and requires a consideration of the business of the employer as a whole.

(d) The business of an employer can be “in or in connection with” more than one industry. This outcome can arise in different ways:

(i) The business of the single employer is a single integrated enterprise but nevertheless operates substantially in or in connection with two or more industries simultaneously. This may be because:

● There is an overlap between industries and the business operates in the area of overlap (in such a case the same business can be described in different ways placing the business in either industry so that it has a “substantial character” that places it in each industry); and/or
● The nature of the single integrated business is such that the business itself overlaps two or more distinct industries in such a way that it has a “substantial character” within each of those industries.

(ii) The overall business of the single employer is properly seen as being constituted by two or more distinct businesses or enterprises each of which has a different “substantial character”.

(e) The mere supply of goods or services to a business in a particular industry is not, of itself, sufficient to render the business of the supplier one that is “in connection with” the industry of the business supplied, even if those goods are essential to the operation of that business.

(f) Where a conventional industry rule applies in relation to a distinct business or enterprise of an employer, all of the employees in that business or enterprise are eligible for membership of the union.’

(Original footnotes deleted)

No substantial displacement of this summary arose in Harnischfeger.

[27] In the conclusion of the Full bench decision of Harnischfeger the following is stated:

‘the application of the “substantial character” test allows that a business may operate substantially in or in connection with two or more industries simultaneously.’

It is also worthy of note that in their prior discussion of the proper construction of the words ‘or in connection with’ the Full Bench said:

‘With respect, we do not consider that recent decisions dealing with the scope and meaning of r 2D have afforded sufficient weight to those words of expansion.’

The reference to r 2D is to the following contents of Rule 2D of the rules of the Construction, Forestry, Mining and Energy Union (‘CFMEU’):

‘[12] The issue for determination in the proceedings at first instance was whether employees of Harnischfeger were eligible to be members of, and represented by, the CFMEU under Rule 2D of the CFMEU’s rules. Rule 2D is in the following terms:

“Without limiting the generality of the foregoing and without being limited thereby the Union shall also consist of an unlimited number of employees engaged in or in connection with the coal and shale industries together with such other persons whether employees in the industries or not as have been appointed officers and admitted as members.”’

[28] It is clear that the view of the Full Bench expressed above, concerning the attribution of ‘sufficient weight’ refers to the words ‘in connection with’ as they appear in the rules of the CFMEU.

[29] It follows that the relevant principles governing the determination of this application referred to in Dyno Nobel and Harnischfeger, derived from legal authority determined by the High Court of Australia and the Federal Court of Australia, establish that while ISS may be a person involved in the facility services industry and/ or security services industry the substantial character of its business or industrial pursuit may also be carried on in connection with another industry or industries. Whether or not this is so is a matter of fact for the Tribunal to determine on the evidence before it. For the purposes of that determination, the work of the employees and the business of ISS at Adelaide Airport and elsewhere must be considered as a whole. The principles provide that the business of ISS, however conducted by its various corporate legal personalities, may overlap or have a substantial character in connection with a plurality of industries.”

[41] Ms Hyles gave evidence that the respondent provides a 24 hour, 7 day on-call personalised care for many health, aged care and disability needs in regional areas and that care occurs in the private residence of the client. She said the respondent has 117 employees amongst whom there are 5 registered nurses, 3 registered nurse supervisors, 4 enrolled nurses, 57 personal carers, 39 homecare and garden workers and 9 clerical and administrative employees. She said that the respondent has clients as follows:

Department of Veterans Affairs (DVA) Clients – 104

Veteran Home Care Domestic Clients – 568

Other clients brokered to the respondent by other local or regional government programs or from other service providers who are unable to service such clients – 68.

[42] She agreed with Mr Dawson that the DVA’s Clients were the DVA or community nursing stream and the Veteran Home Care Domestic Clients were the VHC stream and include “personal care, domestic assistance, respite care and so on” 11. Ms Cooper referred to these as the “clinical side” and “the domestic, shopping, respite, home and garden”12 respectively.

[43] The Department of Veterans Affairs Guidelines for the Provision of Community Nursing Services provide at section 5.2 “Assessment, which includes personal care services” states at page 26 as follows:

“DVA has developed a continuum of personal care services provided across the Veterans’ Home Care (VHC) and DVA Community Nursing Programs to respond to the personal care needs of entitled persons.

When an entitled person is assessed as requiring low level personal care services up to, and including, 1.5 hours per week:

● if the entitled person does not have a clinical need for any other community nursing services, the personal care services should be provided through VHC;
● if the entitled person does have a clinical need for community nursing services, all of the personal care services required should be provided through the DVA Community Nursing Program.”

[44] At page 27 as follows:

“All personal care services in the DVA Community Nursing Program require a minimum of one (1) visit to the entitled person by a registered nurse or enrolled nurse per 28-day claim period unless:

● the limited clinical services outlined in section 6.4 Personal Care Schedule are being provided in addition to the personal care services;
● the personal care services being provided include an Additional Component- Palliative Care Stable or an Additional Component Palliative care Stable Variation phase; or
● the personal care services being provided include assistance with self-administered medication.

In these situations, the entitled person must receive at least one (1) the visit per 28-day claim period from a registered nurse.

A three (3) monthly review of entitled persons receiving personal care services must be undertaken by a registered nurse.

All community nursing services, including personal care services delivered by an enrolled nurse or nursing support staff must be appropriately delegated, supervised and documented by a registered nurse.”

[45] Ms Hyles agreed with Mr Dawson that the respondent met the requirements of DVA although Ms Hyles said, in effect, that the guidelines were applied on a case by case basis and “it is assessed by the registered nurse when they do the initial assessment”. 13

[46] Ms Cooper gave evidence that included the Showering Plans for two clients that are prepared by the registered nurse for implementation by the employee who attends to the client. Treatment plans and service plans were also attached to her statement.

[47] The showering plans include, inter alia:

• ensure arm is secure in sling after shower



• apply continence pad



• observation of skin integrity



• apply Sorbolene to all skin areas



• apply non-medicated cream and moisturiser



• always check umbilicus and dry thoroughly

[48] The treatment plans include, inter alia, reference to blood pressure, showering routine and health status.

[49] The service plans include, inter alia, reference to shower procedure, incontinence pads changing, application of Sorbolene, medication prompts and assistance with positioning on toilet.

[50] Considering this evidence I conclude that the respondent provides home nursing and home care and, as such, while these are two types of service and, arguably, two types of business or industry, there is no doubt that the respondent is in the industry or calling described in the eligibility rule of the applicant.

[51] I am fortified in this conclusion by the approach taken by Watson VP to interpret the eligibility rule of the AIPA in the Pilots Decision where the principle that rules must not be construed narrowly or technically was referred to. At paragraphs 7 and 8 he quotes from decisions of the Federal Court and the High Court:

“[7] The principles of interpretation of an organization’s eligibility rules are well established, and in this case are not in dispute. A Full Court of the Federal Court of Australia in Electrical Trades Union of Australia v Waterside Workers’ Federation of Australia (No. 2) said:

‘Eligibility provisions, such as those contained in r.6 of the federation’s rules, should not be construed narrowly or technically. Such provisions serve the function of defining the general area or areas of industry or industrial pursuit from which the membership of the relevant organization can legitimately be drawn and with which the organization can legitimately be concerned. Plainly, they should be liberally construed (R. v. Cohen; Ex parte Motor Accidents Insurance Board (20); Co-operative Bulk Handling Ltd. v. Waterside Workers’ Federation of Australia (21)). In particular, when they refer to an industrial pursuit, they should ordinarily be seen as referring to the performance of general functions rather than to the precise activities which may, in a particular place or at a particular point of time, be involved in the performance of those functions but which are liable, by reason of changing technology or advances in technique, to be displaced by substituted or varied activities.’

[8] A majority of the High Court of Australia said the following in R v Williams; Ex parte Australian Building, Construction Employees’ and Builders’ Labourers Federation:

‘The eligibility provisions in the rules of a registered organization of employees serve the function of defining the general area or areas of industry or industrial pursuit from which members can legitimately be drawn and with which the organization can legitimately be concerned (see Reg. V Dunlop Rubber Australia Ltd; Ex parte Federated Miscellaneous Workers’ Union of Australia (16); Co-operative Bulk Handling Ltd. v. Waterside Workers’ Federation of Australia (18)). Since such eligibility provisions constitute a reference point for courts, commissions, employers, employees and other organizations in determining or ascertaining an organization’s proper coverage and field of operation, they must be construed objectively (see Reg. v. Aird; Ex parte Motor Accidents Insurance Board (20)). In so construing them, however, it is permissible to pay regard to any common understanding among people concerned with relevant industries and particularly with industrial matters of the ordinary application of the words used and to take account of evidence of that common understanding furnished by the previous use of the words in the relevant organization’s rules and in statutory provisions, decisions, determinations, awards, reports and other papers concerned with the relevant industry or industries (see, e.g., R. v. Hickman; Ex parte Fox and Clinton (21); Reg. v. Aird; Ex parte Australian Workers’ Union (19)).’

[52] Furthermore, the Australian Industrial Relations Commission, as it then was, considered the definition of nursing in Australian Nursing Federation 14 where Williams SDP said at paragraph 37:

“Having considered all the material before me, I am of the view that the appropriate approach, for the purposes of determining the application, is to give the terms contained in the proposed alteration a broad interpretation, constrained only by the context in which those terms appear. For that reason, I intend to interpret the term nursing as meaning providing care to the sick, infirm and all those who, for any reason are unable to look after themselves. I include among such persons those who are not only in need of medical care but also those who are in need of assistance for the purposes of daily living. Without attempting to provide an exhaustive list, I will identify the tasks performed by such persons as including bathing, showering, ensuring the hygiene of the immediate environment, changing beds and toileting, implementing nursing care plans, implementing appropriate behaviour management….”

[53] Mr Baroni disputed the relevance of this decision on the basis that it was in the context of an application for the amendment of the eligibility rules of the Victorian Branch of the Australian Nursing Federation in relation to aged care. However, I think it is of relevance to the general question of what is nursing and whether the business of the respondent includes nursing. I conclude that it does. Also of note is that a Full Bench of the AIRC in Australian Nursing Federation 15 upheld an appeal against Williams SDP in a decision where he had declined a change in the eligibility rules of the Australian Nursing Federation, South Australian Branch to provide coverage for personal care workers in aged care.

[54] Mr Baroni drew my attention to the decision of the Full Court of the Federal Court in Construction, Forestry, Mining and Energy Union v CSPB Limited 16 to the effect that the principle against a narrow or technical interpretation could not support “exhorbitant claims”. I think the conclusion I have come to in this matter falls well short of that description.

[55] Ms Delaney gave evidence that she is an Enrolled Nurse registered with the Australian Health Practitioners Regulation Agency. It is accepted that she is currently employed by the respondent under the Agreement as a Health Care Worker Level 3, rather than 2A, Enrolled Nurse. Level 3 is as follows:

“Health Care Worker Level 3 is an Assistant in Nursing who holds a certificate III or above in Aged care and is competent to perform those duties as determined by SOS.”

[56] Ms Delaney gave evidence that she performs, inter alia, the following tasks;

• showering



• cleaning teeth



• bowel movement checks



• medication prompts

This was not disputed by the respondent.

[57] The classification under which Ms Delaney is employed includes the term Assistant in Nursing and it was Ms Cooper’s evidence that the showering plan is carried out by assistants in nursing. Indeed, the two showering plans included in evidence were for two clients of Ms Delaney. It was common ground between the applicant and the respondent that labels do not define an employee’s work. It was agreed that the tasks a person performs define their work. I accept that. I conclude from the evidence that some of Ms Delaney’s tasks are nursing tasks and some are not. However, for the purpose of the eligibility rule it is significant that Ms Delaney is classified as an Assistant in Nursing and she does perform some work carried out by Assistants in Nursing in the nursing profession generally.

[58] I believe on the basis of her classification and the work she performs the eligibility rule is satisfied and Ms Delaney is accordingly entitled to be a member.

[59] Thirdly, because of the words in s.176(3) of the Act, “in relation to work that will be performed under the agreement”, I must consider whether the applicant is entitled to represent the industrial interests of their member in relation to work that will be performed under the agreement. (emphasis added)

[60] The Agreement provides that employees may perform tasks related to different classifications and Ms Hyles gave evidence as to how this works in practice. During cross-examination she described the practice of employees being paid the rate of pay for the task based on the classification it falls within. 17 Ms Hyles replied to Mr Dawson as follows:

“So if they've got an hour of cleaning and half an hour of showering they get paid two separate rates, is that right, a rate for the hour of cleaning and a different rate for the showering?

That's right.

The showering rate would be the level 3 assistant in nursing rate? Yes, I think so. I'm sorry, I don't have it in front of me, but from memory, yes.” 18

[61] During the course of these proceedings the applicant indicated that they do not seek to represent the industrial interests of employees at the respondent in relation to the proposed SOS Nursing Agreement 2013, but maintain that they are entitled to represent the industrial interests of Ms Delaney in relation to work that she will perform under the proposed SOS Home Carers’ Agreement 2013 (Home Carers’ EA).

[62] The work she performs is described above. There is no evidence that it will change if the two proposed agreements are made.

[63] The respondent contends that “Ms Delaney is employed and engaged by the Respondent as a Personal Carer, not principally engaged in nursing and will be employed in accordance with the proposed Home Carers’ EA.” 19

[64] I think this submission contains the vice Mr Baroni warned of repeatedly during the proceedings, that is, allowing a label to define the work rather than the tasks a person performs. The respondent says that Ms Delaney will be covered by the proposed Home Carers’ EA. Her tasks will not change. Since I conclude that these tasks are such that she is entitled to be represented by the applicant in relation to this work it follows that the applicant is a bargaining representative in relation to this proposed agreement.

[65] I note that the notion that an employer can unilaterally define the scope of an agreement by the issue of the Employee Notice of Representational Rights (the notice) in my view puts the cart before the horse. Bargaining takes place, pursuant to s.173 of the Act when, inter alia, the employer agrees to bargain or initiates bargaining. In practice the proposed scope of the agreement is contained in the notice, but I do not think that this is determinative of the scope of the agreement that results from bargaining, and thus cannot pre-determine the employee organisations that are bargaining representatives.

[66] A Full Bench of FWA, as it then was, considered the status of the Liquor, Hospitality and Miscellaneous Union (LHMU) in an appeal against a decision of Cloghan C who had granted a protected action ballot order. In MSS Security Pty Ltd v Liquor, Hospitality and Miscellaneous Union 20 the Full Bench rejected the appellant’s contention that there can be no bargaining representative for a group of employees until a notice of representational rights under s.173 has been issued to those employees. The Full Bench at paragraphs 12 to15 said:

“[12] It goes without saying that ordinarily, if not invariably, where an employer has refused to bargain it will not have issued a notice of representational rights under s.173 to any of its employees. This is because, in the absence of a majority support determination, a scope order or a low paid authorisation, the obligation to issue such a notice does not arise until after the employer ‘agrees to bargain, or initiates bargaining’.

[13] Thus, s.236 proceeds on the premise that a union or other person can be ‘a bargaining representative of an employee who will be covered by a proposed single enterprise agreement’ where the employer has ‘not yet agreed to bargain, or initiated bargaining, for the agreement’, that is, before a notice of representational rights has been issued by an employer of employees who would be covered by that proposed agreement. It follows that a union or other person can be a bargaining representative of an employee who will be covered by a ‘proposed single enterprise agreement’ prior to the issue of a notice of representation rights to the employee pursuant to s.173 of the FW Act.

[14] In Stuartholme School v The Corporation of the Trustees of the Roman Catholic Archdiocese of Brisbane (Stuartholme) a Full Bench of Fair Work Australia held that the scope of a proposed agreement is a matter than can itself be the subject of bargaining for the agreement. We respectfully endorse the reasoning and conclusion of the Full Bench in that regard.

[15] Once it is accepted that the scope of a proposed agreement can itself be a matter for bargaining it follows that the employer’s obligation under s.173(1) to issue a notice of representation rights in relation to a ‘proposed enterprise agreement’ is to issue such a notice to all employees who would be covered by the broader scope of the agreement proposed by the union or the employer as the case may be.”

[67] At paragraphs 18 and 19:

“[18] As the Full Bench in Stuartholme noted, “[t]he terms of [s.237] unambiguously suggest that bargaining may have commenced under the Fair Work Act even though the parties to the bargaining process are in disagreement about the scope of the proposed agreement.” Where there is a continuing disagreement between the bargaining parties as to the scope of the proposed enterprise agreement, the remedy for the party who wants a narrower scope is to seek a scope order pursuant to s.238. In the absence of such an order, bargaining will proceed on the basis of the broader scope, save that the parties are entitled to continue bargaining over the scope itself until such time as the scope of the proposed agreement is settled through bargaining or by the making of a scope order.

[19] It follows from the scheme of the FW Act that the obligation under s.173 is to issue a notice of representational rights to the broader class of employees even though the employer does not wish to have an agreement that extends that far. If it were otherwise, it would mean that an employer could always prevent an agreement having a broader scope than it is desired by simply refusing or failing to issue notices of representational rights outside its desired scope. Such an outcome is inconsistent with the scheme of the FW Act.”

[68] It follows from this decision that whether an employee organisation can be a bargaining representative is not determined by the proposed scope of the agreement as described in a notice of representational rights. It is determined by whether the employee organisation is entitled to represent the industrial interests of the employee in relation to work that will be performed under the broader scope of the agreement proposed by the union or the employer as the case may be.

[69] It seems to me that in addressing the threshold issue of whether the applicant can make an application for a bargaining order, I have disposed of the application, as amended during the proceedings.

[70] I find that the applicant is, and is entitled to be recognised as, a bargaining representative in relation to the proposed Home Carers’ EA with the respondent.

DEPUTY PRESIDENT

Appearances:

N Dawson, solicitor, with C Blair for the NSW Nurses and Midwives’ Association

M Baroni, solicitor, for SOS Nursing and Home Care Service Pty Ltd

Hearing details:

2013.

Sydney:

July 22 and 30.

 1   [2013] FWCA 3596

 2   [2012] FWA 10543

 3   [2011] FWAFB 6551

 4   [2012] FWA 2790

 5   [2012] FWA 3559

 6   [2013] FWC 2359

 7   [2011] FWA 6863

 8   Exhibit A5

 9   Transcript PN924

 10   [2012] FWA 3559

 11   Transcript PN781

 12   Ibid., PN942

 13   Ibid., PN811

 14   Print T4652

 15 143 IR 222

 16 [2012] FCAFC 48

 17   Transcript PN746-757

 18   Ibid., PN756-757

 19   Exhibit R8, PN46

 20   [2010] FWA 6519

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